Topping and City Of Swan
[2009] WASAT 215
•30 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TOPPING and CITY OF SWAN [2009] WASAT 215
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 30 OCTOBER 2009
FILE NO/S: DR 152 of 2009
BETWEEN: PAUL TOPPING
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Development application Parking of three trucks each comprising a prime mover and trailer Land not used for transfer of goods or persons from one road motor vehicle to another such vehicle No storage of goods delivered by road transport Site within 'Landscape' zone in local planning scheme Trucks are a 'commercial vehicle' by definition Preliminary issue Whether use is properly classified as a 'transport depot' or as a 'use that is not specifically mentioned in the zoning table' Definition of 'transport depot' in City of Swan Town Planning Scheme No 17 Purposive interpretation of local planning scheme Relevance of different definitions of 'transport depot' in other town planning schemes Words and phrases: 'transport depot', 'storage'
Legislation:
City of Swan Local Planning Scheme No 17, cl 1.7.1, cl 4.2.22, cl 4.3, cl 4.3.2, cl 4.4.2, Sch 1
City of Swan Town Planning Scheme No 9, Sch 1
City of Wanneroo District Planning Scheme No 2
Planning and Development Act 2005 (WA), s 252(1)
Shire of Serpentine-Jarrahdale No 2
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Proposed use is classified as 'transport depot' and is not permitted
Development application refused
Category: B
Representation:
Counsel:
Applicant: Mr A Lohman (Representative)
Respondent: Mr P Russell (Representative)
Solicitors:
Applicant: Greg Rowe & Associates (Town Planners)
Respondent: City of Swan
Case(s) referred to in decision(s):
Chiefari v Brisbane City Council [2005] QPELR 500
Randall and Town of Vincent [2005] WASAT 129
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal was asked to determine as a preliminary issue whether the proposed use of parking of three trucks on a lot zoned 'Landscape' is properly classified as 'transport depot' or as 'a use that is not specifically mentioned in the Zoning Table' under the City of Swan Local Planning Scheme No 17.
The City of Swan classified the proposed use as a 'transport depot' as defined within the City of Swan Local Planning Scheme No 17. A 'transport depot' is a use not permitted within the 'Landscape' zone.
The applicant submitted that the proposed use was not a 'transport depot' but more properly classified as 'a use that is not specifically mentioned' and could be assessed on its merits.
The Tribunal found that in addition to the parking of the vehicles, there was not required to also be the transfer of persons or goods from one road vehicle to another or the storage of goods delivered by road transport for the proposed use to be classified as a 'transport depot' under the City of Swan Local Planning Scheme No 17. Parking of the trucks of the type used for transferring and delivering goods was included in the definition to enlarge the definition of 'transport depot'. The parking of such trucks was also a use that constituted a 'transport depot' and the trucks to be parked were considered to be of the type referred to.
The proposed use was properly classified as a 'transport depot' and was therefore found to be a use not permitted in the 'Landscape' zone. The Tribunal dismissed the application for review.
Introduction
Mr Paul Topping (applicant) owns and lives at No 137 (Lot 132) Ashton Road, Bullsbrook (site). The site has a land area of 27.01 hectares and is zoned 'Landscape' under the City of Swan Local Planning Scheme No 17 (LPS 17).
On 22 November 2008, the applicant lodged with the City of Swan (Council or respondent) an application for planning approval for 'parking of commercial vehicles on private land' for the site. The application was to park three trucks, each comprising a prime mover and trailer. There would usually be only one truck present on the site from Monday to Friday, with all three trucks present during Saturday and Sunday. The trucks would be screened from Ashton Road by existing vegetation. On 3 December 2008, the Council refused the application for the reasons:
1.The proposed parking of three prime movers and three associated trailers is considered to be categorised as a 'transport depot' as defined within the City of Swan Local Planning Scheme No 17.
2.A 'transport depot' is an 'X' use (a use not permitted) within the 'Landscape' zone applicable to the subject property.
On 23 April 2009, the applicant applied to the Tribunal for review of the Council's decision under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
Preliminary issue
At a directions hearing on 13 May 2009, the parties identified that there was a preliminary issue to be determined. They subsequently agreed that the preliminary issue was:
Whether the land use to be undertaken on a portion of Lot 132 (137) Ashton Road, Bullsbrook for the parking of three (3) trucks, as detailed within the Application for Planning Approval dated 22 November 2008, is properly classified as 'transport depot' under clause 4.3 of the City of Swan Local Planning Scheme No 17 or as 'a use that is not specifically mentioned in the Zoning Table' in accordance with clause 4.4.2 of the City of Swan Local Planning Scheme No 17.
The Tribunal directed that the preliminary issue was to be determined entirely on the documents in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Relevant scheme provisions
Clause 1.7.1 of LPS 17 states:
Unless the context otherwise requires, words and expressions used in the Scheme have the same meaning as they have
(a)in the Planning Act; or
(b)if they are not defined in that Act
(i)in the Dictionary of defined words and expressions in Schedule 1; or
(ii)in the Residential Design Codes.
Section B, 'Land Use Definitions', of Sch 1, 'Dictionary of defined words and expressions', of LPS 17 contains the definition of 'transport depot' as follows:
Means land and/or buildings used for the transfer of goods or persons from one road motor vehicle to another such vehicle for hire or reward, or for the storage of goods delivered by road transport, and includes the maintenance, repair, garaging or parking or storage of such vehicles.
Within s A, 'General Definitions' of Sch 1 of LPS 17, a 'commercial vehicle' is defined as follows:
Means a vehicle, whether licensed or not, which is used or designed for use for business, trade or commercial purposes or in conjunction with a business, trade or profession and without limiting the generality of the foregoing includes any utility, van, truck, trailer, tractor and any attachment to any of them or any article designed to be an attachment to any of them, and any omnibus or any earthmoving machine whether selfpropelled or not. The term does not include a vehicle not greater than 4.5 tonnes gross vehicle mass (Gym) designed for use as a passenger car, utility, van or light truck or any trailer or other thing most commonly used as an attachment to a passenger car, utility, van or light truck which is rated by the manufacturer as having a gross vehicle mass not greater than 4.5 tonnes.
Clause 4.2.22 of LPS 17 states:
The objectives of the Landscape zone are to
(a)provide for lowdensity rural residential development and associated ruralresidential activities, recognising the visual characteristics of the landscape;
(b)ensure as far as practicable, that the environmental and landscape characteristics of the area are not compromised by development and use of the land for either rural or residential purposes;
(c)encourage the rehabilitation of degraded areas through selected replanting of indigenous flora.
Clause 4.3 of LPS 17 is a table headed 'Zoning Table'. The use class 'Transport Depot' is listed in the Landscape zone as an 'X' use. Clause 4.3.2 of LPS 17 states that the symbol 'X':
Means a use that is not permitted by the Scheme.
Clause 4.4.2 of LPS 17 states:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class the local government may
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of cl 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
What is the proper classification of the use?
It was the submission of the applicant that the definition for 'transport depot' in LPS 17 is to be considered in two parts. What was identified as the primary component was the use of:
… land and/or buildings … for the transfer of goods or persons from one road motor vehicle to another such vehicle for hire or reward, or for the storage of goods delivered by road transport.
The applicant identified the secondary component as the use of 'land and/or buildings' for:
… the maintenance, repair, garaging or parking or storage of such vehicles.
The 'such' in the secondary component of the definition was said by the applicant, and the Tribunal agrees, to refer to the type of vehicles stated or indicated in the primary part of the definition. 'Such', as a determiner, is defined in The Macquarie Dictionary (4th ed, 2005) as:
1. of the kind, character, degree, extent, etc., of that or those indicated or implied
3. like or similar
6. being the person or thing, or the persons or things, indicated
'Such', as a pronoun, is defined as:
8. being as stated or indicated
The applicant said that for the proposal to be classified as a 'transport depot', it must include activities that are identified in the primary component of the definition. If the activities undertaken are only those listed in the secondary component of the definition with no activities of the primary component undertaken, then, it was submitted, the proposal cannot be classified as a 'transport depot'. The applicant said the proposed use is not appropriately classified as a 'transport depot' because:
•there is no transfer of goods or persons from one road motor vehicle to another such vehicle for hire or reward;
•there is no storage of goods delivered by road transport;
•the vehicles proposed to be parked on the review site are not 'such vehicles' as they are not used in the transfer of goods or persons for hire or reward or for the delivery of goods.
The respondent submitted that:
The proper classification of the proposal as a 'transport depot' is borne out by the intended application of the Scheme definition, any common understanding of the term and case history in the current Tribunal and its forbear.
It was the respondent's submission that it is not intended that the definition of 'transport depot' should be read in the manner proposed by the applicant. To do so would, contrary to common understanding, exclude from the classification, bus and taxi depots which are examples of where no goods or persons are transferred or goods stored. This approach, said the respondent, is 'nonsensical'.
The respondent said the applicant's interpretation would be contrary to the application of the term 'transport depot' under the previously operative City of Swan Town Planning Scheme No 9 (TPS 9). The respondent considered such a departure in the interpretation of the definition between schemes to be significant and would manifest planning implications certainly not contemplated with the introduction of LPS 17.
The respondent also referred to the Tribunal's findings in matters arising from decisions of the City of Wanneroo and Shire of SerpentineJarrahdale, and both parties referred to the Tribunal's findings in matters arising from decisions of the City.
In the City of Wanneroo District Planning Scheme No 2, 'transport depot' is defined as:
means any land or buildings designed and used, or which is adapted for use for one or more of the following purposes:
(a)for the parking or garaging of more than one commercial vehicle;
(b)for the transfer of goods or passengers from one vehicle to another vehicle;
and may include the maintenance, mechanical repair or refuelling of the vehicles referred to in (a) or (b) above …
In the Shire of SerpentineJarrahdale Town Planning Scheme No 2, it states that 'transport depot':
means land or buildings designed or used for one or more of the following purposes:
(a)the parking or garaging of more than one commercial vehicle used or intended for use for the carriage of goods (including livestock) or persons;
(b)the transfer of goods (including livestock) or passengers from one vehicle to another vehicle;
(c)the maintenance, repair or refuelling of vehicles referred to in (a) or (b) above;
The above uses (a) to (c) … may … include as an incidental use overnight accommodation of patrons …
The Tribunal considers that cases that address application of the definitions for 'transport depot' in the town planning schemes of the City of Wanneroo and the Shire of SerpentineJarrahdale do not assist. Each definition states that a 'transport depot' means use of the land for 'the parking or garaging of more than one commercial vehicle'. The use of the land for the parking or garaging of the vehicles identified does not appear after the term 'and includes' in the respective definitions. Therefore, the question of whether the parking of the vehicles on the land is listed to limit or extend uses permitted does not arise.
Under the TPS 9 at Sch 1, the definition for 'transport depot' was:
… means any land or buildings used for the garaging of road motor vehicles used or intended to be used for carrying goods or persons for hire or award or for any consideration, or for the transfer of goods or persons from one such motor vehicle to another of such motor vehicles, and including the maintenance and repair of such vehicles, not other vehicles.
TPS 9, however, was revoked when LPS 17 was gazetted on 18 February 2008. The Tribunal has noted, however, the difference in the wording of the definition of 'transport depot' in TPS 9 and LPS 17, particularly that the use of the land for garaging of the vehicles identified does not appear after the term 'and including' in TPS 9. Therefore, again, the question of whether the parking of the vehicles on the land is listed to limit or extend uses permitted does not arise.
Relevant in those matters, however, were the general principles identified in the classification of the uses proposed in those matters. Whether the proposed use is properly classified as a 'transport depot' is to be found in the application of the principles of statutory interpretation and the provisions of LPS 17. Consistent with cl 1.7.1 of LPS 17, the Tribunal has looked to the definitions of words and terms in LPS 17 and where not defined to the ordinary meaning of the word or term. This has been done in the context of the objectives and purpose of the provisions of LPS 17.
In Statutory Interpretation in Australia by DC Pearce and RS Geddes (6th ed, LexisNexis Australia, 2006) (Pearce and Geddes) at [6.56] under the heading 'Use of expressions "means" and "includes"', it is said, with reference to cases:
It is usual to find one or other of these expressions where a word or phrase is being defined in legislation. The orthodox and, it is submitted, the correct approach to the understanding of the effect of these expressions is that 'means' is used if the definition is intended to be exhaustive while 'includes' is used if it is intended to enlarge the ordinary meaning of the word.
The submission of the applicant is to the effect that the definition is to be interpreted as exhaustive. That is, for the use to be a transport depot, the land must be used for the transfer of goods or persons from one motor road vehicle to another such vehicle for hire or award or for the storage of goods delivered by road transport. The applicant said the reference in the definition after 'and includes', to maintenance, repair, garaging or parking or storage of such vehicles, is to what might also occur, but unless the first-mentioned activities are taking place as well, then the site cannot be classified as a 'transport depot'.
The Tribunal is of a different view. It is considered the inclusion of 'and includes' is to show that the activities listed after 'means' are not exclusive. The Tribunal considers the 'and includes' is expansive. This is because after 'and includes' are listed both items that are usually associated with a transport depot which might be mentioned to remove any doubt about such activities being part of the use and items that might otherwise fall within other land use classes in LPS 17, such as the repair of the motor vehicles use class 'motor vehicle repair', and storage of the vehicles use class 'storage'. A difficulty the Tribunal finds with the applicant's approach is that it gives rise to the question of whether the transfer of goods of persons from one vehicle to another for hire or award of the storage of the goods delivered by road transport is a 'transport depot' if it does not include maintenance, repair, garaging or parking or storage of such vehicles.
The principle identified by Pearce and Geddes is that the word 'include' is used in definitions to extend the meaning of a word or term beyond the usually accepted meaning. With this 'orthodox' approach, a site not used for the transfer of goods or persons or for the storage of goods delivered, but where land, or buildings, is used just as a site where vehicles such as those used for the transfer of persons or goods are maintained, repaired, garaged or parked or stored, would also be a transport depot.
The Tribunal considers that this inclusive interpretation, rather than an exclusive interpretation, is consistent with a purposive interpretation of the provisions of LPS 17.
It is a principle of statutory interpretation that the fundamental objective is to ascertain the legislative intention by reference to the language of the instrument as a whole: Randall and Town of Vincent [2005] WASAT 129 (Randall) at [75] [77] and definitions that cause difficulty be given a purposive instead of a literal interpretation: see Randall at [90] [93].
Both parties, in support of their respective positions, cited Chiefari v Brisbane City Council [2005] QPELR 500 (Chiefari) at [502]:
[The definitions under review] are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and common sense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
The applicant said that to subsume the proposed 'use not listed' into the definition of 'transport depot' would be tantamount to ascribing rigidity and technicality in interpreting LPS 17, the effect of which would be to deprive LPS 17 of its flexibility to deal with orderly and proper planning in the scheme area.
The Tribunal also adopts, with respect, Chiefari cited above. That is, that town planning schemes ' … should be read as a whole and applied in a practical and common sense, and not an overly technical way, and in a fashion which will best achieve their evident purpose'. The Tribunal arrives at a conclusion different from that of the applicant by this approach. The site is in the Landscape zone under LPS 17. The objectives for that zone, at cl 4.2.22 of LPS 17, include recognising visual characteristics of the landscape and ensuring that environmental and landscape characteristics are not compromised. To achieve this end, in the zoning table of LPS 17, 'transport depot' is a use that is not permitted in the Landscape zone. Consistent with the intent of LPS 17, the Tribunal is of the view that the parking of the vehicles used for the activities specifically identified in the definition of 'transport depot' would be inconsistent with achieving that objective.
The respondent said that if the use is not to be classified as 'transport depot', in the alternative, the classification of the proposed parking of the vehicles is the use 'storage', which is also a use 'not permitted' in the Landscape zone. Section B of Sch 1 of LPS 17 states that 'storage':
Means premises used or provided for use for the storage of goods, equipment, plant or materials.
The Macquarie Dictionary, (4th ed, 2005) defines 'storage' as 'the act of storing' and the ordinary meaning of 'storing' as:
11. to supply or stock with something, as for future use
13. to deposit in a storehouse, warehouse, or other place, for keeping.
With respect, the Tribunal considers that parking trucks on the land where the trucks come and go on a regular basis for work is not storage in the ordinary meaning of the word. The trucks would not be parked on the land for future use. The Tribunal notes that the definition 'transport depot' after 'includes' lists storage of the vehicles. The site might be used for storage of vehicles in certain circumstances and thereby come within the definition 'transport depot', but the proposed use is not storage.
It was common ground that the applicant's trucks are each a 'commercial vehicle' as defined in LPS 17. The applicant argued that the definition of 'transport depot' does not refer to 'commercial vehicle', but to 'road motor vehicle' which is not defined in LPS 17. There are also no provisions regulating parking of a 'commercial vehicle' in LPS 17.
The applicant went on to say that the proposed use of the site as 'parking of commercial vehicles on private land' therefore does not fall within the definition of 'transport depot' under LPS 17 and does not fall within any other use classes listed in the zoning table of LPS 17. By the operation of cl 4.4.2 of LPS 17, the proposed use constitutes a 'use not listed' and should therefore be considered on its merits.
The Tribunal notes that the definition 'commercial vehicle' in LPS 17 also has within it 'includes', after which are listed various types of vehicles to extend the definition to vehicles about which there might be doubt as to whether they are to be included within the definition.
Consistent with the principle identified by Pearce and Geddes, the use of the word 'includes' extends the definition, making it inclusive rather than exclusive. The Tribunal considers it would be inconsistent with this principle and Chiefari to interpret 'commercial vehicle' exclusively so that 'road motor vehicle' was not a commercial vehicle, and to interpret 'transport depot' so narrowly that a commercial vehicle consistent with the description 'road motor vehicle' prevented consideration of a proposed use as a transport depot. In support of this view is that an omnibus is defined as a commercial vehicle in LPS 17, and this is the obvious vehicle for conveying the persons to be transferred under the definition of 'transport depot'.
One further submission of the applicant was in respect to a test of fact and degree. The respondent mentioned bus and taxi depots. The applicant said these were high intensity uses that might appropriately be classified as a transport depot but which could not be reasonably compared to the proposed parking of three trucks on a 22 hectare lot. The applicant said there was no use class for a use of the low intensity proposed and so the proposed use should be classified 'use not listed'.
The Tribunal accepts that the proposed use is not comparable in intensity to a bus depot. However, three trucks are considered to be more than might be considered the convenient parking of a truck at home overnight by a truck driver. This is not a use incidental to a predominant use such as a mine or farm, but a business of trucks being used to carry goods. The use is considered to be of sufficient intensity to constitute a transport depot.
Conclusion
The Tribunal considers that the definition of 'transport depot' in LPS 17 is to be interpreted in what Pearce and Geddes submit to be the 'orthodox' and 'correct' approach. That is, 'that 'includes' is used if it is intended to enlarge the ordinary meaning of the [term]'. The Tribunal considers that this is consistent with achieving the intent of LPS 17 in respect of the control of uses to achieve the objectives of the Landscape zone. The Tribunal finds that, for the purposes of LPS 17:
1)'transport depot' means land and/or buildings used for the transfer of goods or persons from one road motor vehicle to another such road motor vehicle for hire or reward;
2)'transport depot' means land and/or buildings used for the storage of goods delivered by road transport; and
3)land and/or buildings used for the maintenance, repair, garaging or parking or storage of such vehicles (where the 'such vehicles' are the road motor vehicles or road transport of the type referred to in 1 or 2 above) is also a 'transport depot'.
The Tribunal considers that the three trucks are of the type identified as 'such vehicles' in the definition and are intended to be covered within the definition. It has therefore been found that the development applied for, being 'parking of commercial vehicles on private land' as set out in the description in the application, constitutes a transport depot.
The answer to the preliminary issue, therefore, is 'yes'. The parking of three trucks on a portion of No 137 (Lot 132) Ashton Road, Bullsbrook, as detailed within the Application for Planning Approval dated 22 November 2008, is properly classified as a 'transport depot' under cl 4.3 of LPS 17.
The proposed use is therefore a use not permitted in the Landscape zone under cl 4.3 of LPS 17. The Tribunal has therefore determined that the application for review must be dismissed.
Orders
The Tribunal makes the following orders:
1.The proposed development is properly classified as 'transport depot' under City of Swan Local Planning Scheme No 17.
2.The application for review is dismissed.
3.The decision of the respondent made on 3 December 2008 to refuse development approval for the parking of commercial vehicles on private land at No 137 (Lot 132) Ashton Road, Bullsbrook, is affirmed.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER